(CNSNews.com) - Senate Majority Leader Harry Reid (D.-Nev.) cited what he described as Elena Kagan’s defense of the Second Amendment last week as he explained his vote to confirm her to the Supreme Court.
“The roots of General Kagan's respect for the rule of law are in her respect for our separation of powers,” Reid said in an Aug. 5 speech on the Senate floor. “It is a reverence she developed during her service in all three branches of government, defending the First and Second Amendments, strengthening our national security, and protecting children's safety.”
Reid’s statement that Kagan had a record of “defending” the Second Amendment contrasts with information about Kagan’s record on gun issues put out during her confirmation hearings by leading gun-rights groups, including the National Rifle Association and the Gun Owners of America, both of which opposed Kagan’s confirmation.
On July 1, NRA Executive Vice President Wayne LaPierre and NRA Executive Director Chris Cox sent a letter to Senate Judiciary Chairman Patrick Leahy (D.-Vt.) and Sen. Jeff Sessions (R.-Ala.), the ranking member of the Judiciary Committee, explaining the group’s objections to Kagan’s confirmation and outlining her record on Second Amendment issues. Copies of the letter were also delivered to Senate Majority Leader Reid and Senate Republican Leader Mitch McConnell (Ky.).
Kagan, said the NRA letter, “has repeatedly demonstrated a clear hostility to the fundamental, individual right to keep and bear arms guaranteed under the U.S. Constitution.”
The NRA’s letter cited three specific instances in Kagan’s public career in which the group contended she had worked against Second Amendment rights. These included one example from her days as a clerk to Supreme Court Justice Thurgood Marshall, another from her days working in the Clinton White House, and a third from her time as Solicitor General in the Obama administration.
“As a clerk for Justice Thurgood Marshall, Ms. Kagan said she was ‘not sympathetic’ to a challenge to Washington, D.C.’s ban on handguns and draconian registration requirements,” said the NRA letter.
“As domestic policy adviser in the Clinton White House, a colleague described her as ‘immersed’ in President Clinton’s gun control policy efforts,” the letter said. “For example, she was involved in an effort to ban more than 50 types of commonly-owned semi-automatic firearms—an effort that was described as: ‘taking the law and bending it as far as we can to capture a whole new class of guns.’
“And as Solicitor General,” the NRA letter said, “she chose not to file a brief last year in the landmark case of McDonald v. Chicago, thus taking the position that incorporating the Second Amendment and applying it to the States was of no interest to the Obama Administration or the federal government. These are not the position of a person who supports the Second Amendment.”
McDonald v. Chicago was decided by the Supreme Court in June. It tested a fundamental constitutional question: Did the Fourteenth Amendment require the states to recognize the right of individuals to keep and bear arms as protected by the Second Amendment to the Constitution? The court voted 5-4 that the states needed to abide by the Second Amendment. The four justices who voted that the states did not need to recognize an individual right to keep and bear arms as protected by the Second Amendment were Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and John Paul Stevens.
Justice Breyer said in a dissent in this case: “I can find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.”
William J. Olson, an attorney who represents Gun Owners of America, and who has extensive Second Amendment experience, testified in the Judiciary Committee against Kagan’s confirmation. In his testimony, Olson cited some of the same factors in Kagan’s record that the NRA cited in their letter.
In written testimony presented to the committee, Olson said he and a colleague had been the only attorneys to file an amicus brief in a 1987 Second Amendment case—Sandidge v. United States. Kagan, who was then working as a clerk to Justice Thurgood Marshall, worked to block that case from being considered by the Supreme Court. This was the case, alluded to the NRA letter, in which Kagan said she was "not sympathetic" to the petitioner.
The question in Sandidge’s case was whether the severe gun-control laws in Washington, D.C. that made it virtually illegal to own a gun violated the Second Amendment.
“The file in Sandidge records that Mr. Sandidge was an African-American man who worked at a laundromat in the District,” Olson wrote in his testimony. “He was required to carry its cash receipts with him from the laundromat to his apartment over the Laundromat at the end of the day—which necessitated leaving the building and walking on the street briefly between the two entrances. Mr. Sandidge previously had been robbed, and was carrying a .25 semi-automatic pistol for his own protection when he was arrested. In fact, there was testimony that there had been frequent robberies at the laundromat.”
When Sandidge petitioned the Supreme Court to take up the appeal of his conviction for possession of an unregistered handgun, Kagan opposed having the court review it.
“Ms. Kagan’s memorandum on the case,” Olson testified, “recommended to Justice Marshall the denial of the petition for cert, as follows: ‘[Petitioner’s] sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear Arms.’ I’m not sympathetic.’”
Olson also pointed to the careful answers Kagan has given about the case of District of Columbia v. Heller, decided by the Supreme Court in 2008. This case tested whether the District violated the Second Amendment with its severe gun-control laws, which, among other things, required legally owned guns to be disassembled and unloaded. The court ruled 5-4 that this was unconstitutional and affirmed that Americans have an individual right to keep and bear arms.
In a written response to Sen. Charles Grassley (R.-Iowa) during her confirmation hearings for solicitor general, Kagan indicated that the Supreme Court had guaranteed an individual right to own guns “after” Heller.
“There is no question, after Heller, that the Second Amendment guarantees Americans ‘the individual right to possess and carry weapons in case of confrontation,’” wrote Kagan.
“That’s nice—but what about before Heller,” Olson testified. “Heller did not rewrite the Second Amendment—the Supreme Court’s decision only rejected a false notion that it protected a collective right. Her answer, that as Solicitor General she was bound by Heller, provides no assurance to this body that as a Supreme Court Justice, she is bound by the Second Amendment as written by the framers, rather than as interpreted by her predecessors.”
In her Senate confirmation hearings, Kagan was asked by Sen. Russ Feingold (D.-Wis.), “How in your view should a Supreme Court justice go about deciding whether a law infringes on Second Amendment rights?”
Kagan provided a response that indicated she anticipated the court would be revisiting the Second Amendment issue and that its approach to gun rights was not yet fully settled.
“I suspect that going forward the Supreme Court will need to decide what level of constitutional scrutiny to apply to gun regulations,” Kagan responded to Feingold. “Some people read Heller to apply strict scrutiny. Other people think Heller suggests a kind of intermediate scrutiny. I’ve seen sort of both views of that decision. It's clearly a decision that will come before the court.
“I think, as you said, the Heller decision clearly does say that nothing in it is meant to suggest the unconstitutionality of certain very longstanding kinds of regulations, and the felon in possession example is the first on that list. But the court also says that the list is not exhaustive,” she said. “And so I think that there will be some real work for the court to do in this area.”
The NRA also expressed its anxiety about where Kagan would go on Second Amendment rights once confirmed to the court, suggesting that her testimony was reminiscent of the confirmation-hearing testimony of Justice Sonia Sotomayor, who told the committee she understood that the court had affirmed the individual right to keep and bear arms in Heller but then voted against that right in the McDonald case decided in June--and even joined Justice Breyer’s decision expressly denying the individual right to keep and bear arms.
“During her confirmation hearings last year, Justice Sonia Sotomayor repeatedly stated that the Supreme Court’s historic Heller decision was ‘settled law,’” wrote LaPierre and Cox in their letter from the NRA to the leaders of the Judiciary Committee. “Even further, in response to a question from Chairman Leahy, she said ‘I understand the individual right fully that the Supreme Court recognized in Heller.’ Yet last Monday in McDonald, she joined a dissenting opinion which stated: ‘I can find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.’”
“We would also note that both Heller and McDonald were 5-4 decisions,” said the NRA letter to the senators. “The fact that four justices would effectively write the Second Amendment out of the Constitution is completely unacceptable. Ms. Kagan has repeatedly declined to say whether she agrees with the dissenting views of Justices Stevens, Breyer, Ginsburg, and Sotomayor, which leaves unanswered the very serious questions of whether she would vote to overturn Heller and McDonald or narrow their holdings to a practical nullity.”
CNSNews.com asked Sen. Reid’s press office why he cited Kagan’s “defending” the Second Amendment in his speech explaining his vote to confirm Kagan.
“The CEO of the NRA has personally recognized Reid as a champion of the Second Amendment,” Reid Spokesman Jim Manley responded by email.
“Senator Reid is responsible for the Clark County Shooting Park--one of the world's finest shooting facilities--that he opened this spring,” said Manley.
“He was one of the signers of the NRA's brief in the McDonald v Chicago case that reaffirmed that the Second Amendment guarantees an individual right to bear arms,” said Manley. “He expects Kagan to honor the Court's precedents, which include Heller and McDonald.”